Constitutional reformers need to tackle six key questions about the regulation of digital campaigning

Today marks the second day of the Unit’s conference on the Johnson government’s constitutional reform agenda, for which free tickets remain available. One of today’s speakers, Kate Dommett, argues that the government’s proposals to tackle the challenges posed by digital campaigning are far from comprehensive, leaving many unanswered questions for future governments to address.

Five years on from the Brexit referendum and the Cambridge Analytica scandal that emerged in its wake, the government is poised to publish its Electoral Integrity Bill. Proposing ‘significant changes to the electoral and democratic system’, it could be presumed that Boris Johnson’s government is about to enact an ambitious programme of constitutional change that will update electoral systems to the digital age. Yet, from the details available so far – including a new announcement this week – it seems Johnson’s government is failing to address six critical questions about digital campaigning, leaving considerable room for further reform.

The rise of digital technology in campaigning

The rise of digital campaigning has been a slow and steady phenomenon in UK elections, but in recent years there has been significant attention paid to the need for electoral reform. The current regulation governing electoral campaigning can be found in the Political Parties, Elections and Referendum Act (PPERA) that was passed in 2000. Since then the adoption of websites, social media profiles and, more recently, online advertising by electoral campaigners has raised questions about the suitability of existing legislation. Indeed, a range of parliamentary committees, civil society bodies, academics and even digital companies such as Facebook, have asserted a need for urgent digital campaigning regulation.

Publishing a report devoted to digital campaigning in 2018, the Electoral Commission has been at the forefront of these debates. Its analysis revealed the rapid rise of digital tools in elections, showing increasing amounts are being spent on digital advertising. Updating its statistics to include the last election, Figure 1 (below) shows that spending on digital advertising has increased to around £7.5 million, and now represents a significant proportion of election campaign spend.

Figure 1: Electoral Commission spending return declarations related to advertising and digital advertising 2014-2019
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The anatomy of democratic backsliding: could it happen here?

The term ‘backsliding’ has been coined to describe the phenomenon by which leaders who come to office within a democratic framework, only to attack some of democracy’s core features when in office. Stephan Haggard and Robert R Kaufman outline some of the key features of ‘backsliding’, discuss how and why it can take hold, and whether there are warning signs that such a process could happen in the UK. 

During the presidency of Donald Trump, American democracy suffered the most serious challenge it has faced since the country’s Civil War. Trump and his administration inflamed divisions that jeopardise the rights of women and minorities; attacked the press; defied oversight; sought to stack the judiciary and law enforcement agencies with partisan loyalists; challenged the integrity of the electoral system, and ultimately stoked a violent challenge to the democratic transfer of power. These threats were different from conventional forms of democratic reversion, such as the coup d’etat. Instead, they reflected a more insidious process that has come to be known as ‘backsliding,’ in which illiberal leaders rise to power within a democratic framework and attack core features of democracy from within.

Because the United States occupies a unique position at the heart of the international system, backsliding there commanded worldwide attention. But the United States was hardly alone. In a new study, we identified at least 15 other countries in which duly-elected democratic governments recently moved along similar paths. Not all of these paths lead all the way to autocracy; in the United States, democracy survived the Trump era badly damaged but intact. But depending on the metric used, more than half of these cases slid into ‘competitive authoritarian rule’: systems in which elections persisted but were manifestly rigged. Notably, although many of the failed democracies we examined were weakly institutionalised at the outset (for example, Bolivia, Ukraine, and Zambia), others such as Hungary, Poland, and Venezuela were once considered relatively robust democratic regimes.

These cases raise the question of whether similar adverse developments could occur in other seemingly stable democracies. Could they perhaps even happen in the UK? 

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The 2020 US presidential election: nine lessons

As reported in the latest issue of Monitor, the US presidential election raised even more constitutional issues and questions about the US system of elections than many anticipated. Colin Provost and Nadia Hilliard of the UCL Centre for US Politics discuss how the election was administered, and the roles of the judiciary, Electoral College and social media in the process.

The US presidential election of 2020 has been perceived by many observers as one of the most important elections in American history. A highly polarised electorate turned out in record numbers in the middle of a pandemic and for the first time, the incumbent president refused to concede after a clear result, while pushing a steady, yet unsubstantiated series of claims about voter fraud and voting irregularities. Given the highly unusual set of circumstances surrounding this election, it is worth considering how well US institutions performed with respect to the conduct of a free and fair election, and what lessons should be learned for future electoral cycles.

1. States can run elections smoothly.

Although federal laws that are harmonised across the states might seem to make more sense for national elections, the US Constitution allows each state to set its own election laws, as long as they are in compliance with the 1965 Voting Rights Act and other relevant, federal legislation. Keeping that in mind, it is important not to understate the fact that, on average, the states performed well in terms of administration of this election. Despite the pandemic, millions of people were able to vote and perhaps more importantly, a large subset of those people were able to vote by mail, so that they would not have to put their health in jeopardy by waiting in long – and often cramped – queues. Ultimately, those votes were all counted, even if a victor could not be declared until 7 November —five days after election day.

2. US electoral institutions are resilient.

The institutions of election administration proved to be resilient in the face of baseless allegations of voter fraud and voting irregularities: those allegations were many, and continue to be made. In a normal election year, post-election lawsuits are practically non-existent, but in 2020, the Trump campaign filed dozens of lawsuits across several states, nearly all of which have been found to be lacking in merit, while tweeting inaccurate information about the election and its results. Georgia senators David Perdue and Kelly Loeffler suggested that Georgia Secretary of State Brad Raffensberger – the state official in charge of overseeing elections and certifying the results – should resign after not finding evidence of electoral fraud in that state. Additionally, President Trump invited the leadership of the Michigan legislature to the White House, apparently with the goal of getting them to nominate different electors to the Electoral College that formally votes in the new president than those selected by the Michigan Democratic Party. The only legal basis for this occurring is if one believed that Joe Biden did not clearly or lawfully win the state, even though his margin of victory was in excess of 150,000 votes. Finally, a large number of Trump allies in Congress, the media and elsewhere supported these actions, implicitly or explicitly. Despite all these challenges, the votes were counted and certified by all 50 states and the District of Columbia.

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Elections and COVID-19: how can next May’s polls go ahead safely and democratically during a pandemic?

Elections set to take place across the UK in May 2020 were postponed for 12 months due to COVID-19. Election administrators and policymakers now have less than eight months to prepare for the possibility of holding polls during a pandemic. Sarah Birch, co-author of a recent British Academy briefing on holding safe and democratic elections during COVID-19, discusses the key obstacles to a successful poll and offers some recommendations for making sure the May elections are fair and safe.

An election requires the largest peace-time mobilisation that any state has to undertake. Even at the best of times, this is a major administrative feat. Conducting an election during a pandemic is far more daunting still, as electoral authorities have to consider the health of voters, polling and counting staff and campaign organisers, together with the health of democracy. 

If an election is to serve democratic aims, it is hugely important that it is both fair and seen to be fair. Those running elections while COVID-19 remains a problem must clearly safeguard the process in terms of the health of those involved; they will also need to ensure popular confidence in procedures that will in some ways be different from what voters are used to. 

Any change to normal practices is bound to attract attention, and potentially suspicion. The recent British Academy report, How to hold elections safely and democratically during the COVID-19 pandemic’, indicates that there are several things that electoral authorities can do to make sure that COVID-specific measures work.

If the pandemic has not been vanquished by May 2021, these suggestions may be of use to elected representatives and administrators in Scotland, Wales, London and local authorities across England, all of whom will be making arrangements for polling. These recommendations are also relevant to countries around the world that are preparing elections over the coming months.

Firstly, it makes sense for electoral authorities to use strategies that are part of their existing toolkits, rather than trying out completely new ideas (such as internet voting) that cannot be tested properly in the time available. The UK has extensive experience of postal voting, so this is a tool that can be relied on and potentially promoted for wider use. 

It will not make sense to implement other changes to the electoral system at this point, such as the proposed introduction of ID at UK polling stations. Pandemic-related measures will be challenging enough to develop, introduce and communicate, without the government also trying to roll out a whole new way of voting.

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